South Africans who lost their citizenship when they acquired the nationality of another country now have it back.
Citizenship goes to the core of a person’s identity and their sense of belonging. But the legal status of citizenship plagued many South Africans, sometimes even unbeknown to them, as the South African Citizenship Act 88 of 1995 provided that a citizen shall cease to be such citizen if they acquire the citizenship or nationality of another country.
This meant that South African citizens who had in good faith acquired a different citizenship or nationality, without first obtaining the approval of the minister of home affairs, lost their South African citizenship. On 6 May 2025, in a landmark judgment, the constitutional court confirmed that this provision is contrary to the Constitution and herded back the country’s “lost” citizens.
The high court’s finding
Section 6(1)(a) of the Act (the impugned provision) came under the judicial microscope when the Democratic Alliance (DA) brought an application to the high court, to have this provision declared unconstitutional and invalid on the grounds that it violates the right to citizenship enshrined in section 20 of the Constitution. Moreover, the section does so without notifying citizens, without a justifiable reason and without any person having taken a decision to deprive them of that right.
In addition, the DA sought a further order that would declare that all persons who had lost their citizenship through the operation of this particular provision of the Act, may apply to the minister to have their citizenship reinstated. The application was opposed by both the minister and the director-general of home affairs.
The DA illustrated the disastrous effect of impugned provision by filing an affidavit by Phillip Plaatjes, a chartered accountant who lost his citizenship because of the impugned provision when he obtained citizenship in the United Kingdom in 2007 through naturalisation. Plaatjes, who was under the impression that he had dual citizenship, only became aware of the effect of the Act when he saw an article about it online — seven years after he had already acquired his British citizenship.
In 2015, he requested a determination of his citizenship from the South African embassy in London. It was confirmed to him that he had committed a voluntary act which resulted in the automatic loss of his South African citizenship. The court noted that Plaatjes experienced that as “one of the saddest days of his life” as he had no intention of relinquishing his South African citizenship.
Loss vs deprivation
The DA argued in the high court that the impugned provision violates section 20 of the Constitution, which provides for the right to citizenship. The high court dismissed the DA’s application. It held that the impugned provision is not irrational as it serves a legitimate government purpose, namely the state’s interest in regulating and managing citizenship, and that the citizenship is only lost if a person voluntarily acquires a foreign citizenship and chooses not to apply for the minister’s permission to retain their original citizenship. It further held that section 3 of the Constitution allows for the loss of citizenship as it states that legislation must provide for the acquisition, loss, and restoration of citizenship. Section 20, however, prohibits the deprivation of citizenship. This argument centred around “loss” being different to “deprivation”.
The high court further held that the loss of citizenship that occurred as a result of the impugned provision was not automatic, but that it was an effect of the operation of law that followed voluntary conduct by a citizen and a formal act, like applying for a naturalisation certificate. The court emphasised that a lack of knowledge of the applicable law does not support a conclusion that the provision is unconstitutional. Last, the court held that other rights, that are awarded to all citizens, are not unjustifiably limited by the loss of citizenship. This inability to exercise citizen rights is merely a consequence of no longer having the status of a citizen.
The supreme court of appeal’s finding
The supreme court of appeal (SCA) granted the DA leave to appeal and held that the standard of rationality required that the minister explain the legitimate purpose of the impugned provision. The SCA found the provision to be irrational as there is no rationale for why an application for a different citizenship should result in the loss of South African citizenship, as well as for the fact that it treats South African citizens who already possess dual citizenship, for example through marriage to a foreign national, differently from those who intend to acquire citizenship of another country for other reasons.
The SCA further held that the impugned provision cannot be aimed at regulating renunciation of citizenship, as there is a different section, namely section 7 of the Act, serving that purpose. Finally, the SCA held that the impugned provision unjustifiably limits rights that are guaranteed by the Constitution, like political rights, the right to enter and remain in the country, and the right to freedom of trade, occupation and profession. In light of the above, the SCA declared the section inconsistent with the Constitution.
The constitutional court’s considerations
The constitutional court, in deciding whether to confirm the SCA’s finding of unconstitutionality, noted the importance of citizenship as the origin of all persons’ “right to have rights”. The concourt set out the issue with the provision in question as being that it infringes section 20 of the Constitution which provides that no citizen may be deprived of citizenship. The question was raised by the concourt whether the automatic loss of citizenship by law constitutes a factual deprivation of citizenship and thus constitutes an infringement of the constitutional right to citizenship.
Judge Steven Majiedt, who wrote this unanimous judgment, expressed that a distinction between “loss” and “deprivation” of citizenship is “a distinction without a difference” — that is, mere semantics. When a citizen’s cherished status, along with access to certain rights, are automatically terminated by law, without warning and on account of dual citizenship, it amounts to a deprivation of citizenship. It was further reiterated that the right to citizenship is entrenched in the Bill of Rights and cannot be infringed upon or limited without justification.
Section 7 of the Act governs renunciation of citizenship in a justifiable manner that averts statelessness, whilst the impugned provision’s unjust effect includes the loss of other constitutional rights afforded to citizens.
Serves no legitimate purpose
The concourt firmly reiterated that the impugned provision serves no legitimate government purpose. The court further held that section 6(2) of the Act, which allows the minister the discretion to grant dual citizenship upon application, does not remedy the unjust loss of citizenship, but rather highlights the provision’s arbitrariness. The concourt quoted the SCA in stating that the automatic loss of citizenship, subject to the minister’s unbounded discretion, “is a recipe for capricious decision-making”.
The concourt expressed compassion for the plight of Plaatjes, whose experience clearly illustrates the irrationality of the impugned provision. Without his knowledge or consent, and against his wishes, he lost his South African citizenship. Exacerbating the irrationality is the fact that the department of home affairs was seemingly also unaware of his loss of citizenship. He had travelled to South Africa multiple times after he acquired British citizenship without encountering any issues at immigration. Such uncertainty surrounding an issue as significant as citizenship can surely not be in conformity with the Constitution, the apex court held.
The global position on dual citizenship
Steven Spadijer, a legal professional and scholar who holds dual citizenship of Australia and Montenegro, was admitted as amicus curiae (a friend of the court) to provide insight to the global position on dual citizenship. He also made submissions regarding the South African human rights implications of the impugned provision. The concourt considered his submissions thoroughly, which included that permitting dual citizenship is the global norm and not the exception, especially considering ever-increasing globalisation. Many countries, including a few in Africa, expressly provide for a right to dual citizenship in their constitutions, while many also provide that citizenship may only be lost through voluntary renunciation.
Of particular interest, because it is closer to home, is a finding by the Botswana high court that requiring children to renounce one citizenship in favour of another violated several of their constitutional rights, for example the right to equal protection, freedom of movement and anti-discrimination based on place of origin. The high court held that a requirement of renunciation leads to a painful choice and a strong sense of deprivation, which would affect an individual more than it would affect the state.
The constitutional court’s conclusion
The concourt found that section 6(1)(a) of the Act is unconstitutional as it infringes the right to citizenship and, consequentially, other constitutional rights — namely political rights, the right to enter and remain in South Africa and the right to freedom of trade, occupation and profession. To remedy the situation, the concourt ordered that the impugned provisions invalid from its promulgation on 6 October 1995 and that all citizens who lost their citizenship by operation of this provision are automatically and retrospectively deemed not to have lost their citizenship. The minister was ordered to pay the DA’s costs, which illustrates the concourt’s firm belief that the impugned provision is indeed unconstitutional.
This decision demonstrates the gravity of citizenship as an aspect of identity — both individual and communal — but also as a gateway to other important constitutional rights. It shows the apex court’s willingness to adapt to globalisation, when justifiable to do so, to ensure that South Africans’ rights are protected, regardless of where their roots are currently planted.
Wilmien van Biljon is a candidate attorney and Peter Michaels a senior associate at Herold Gie Attorneys.